- 學位論文
圍標犯罪之研究-以政府採購法第八十七條規定為中心
Enclose the research of marking the crime -Regard 87th regulation of law of purchase of the government as
摘要
政府採購涉及龐大商機，其利潤常為不肖廠商所覬覦，而政府採購所產生的弊端中，以圍標行為所產生之犯罪最多。因之，我國於制定政府採購法時，特別將原屬公平交易法所規範之圍標行為，納入該法之罰則章中，並以該法第八十七條規範圍標行為之處罰要件。然廠商為了參標時能符合政府採購法之規範，常向他人「借牌」參標，藉以符合第一次招標即達三家廠商之要求，同時亦增加得標之機會，其認為此舉只是單純想獲取標案並無犯罪之意圖，惟常遭檢調查獲而以該法第八十七條第三項之詐術圍標罪起訴，迨至法院審理期間常遭以不符合「構成要件」而獲判無罪，致使於民國九十一年修法時於該條第五項增定「借牌圍標罪」之規定。本文認為倘僅是單純借牌參標，即施以刑事處罰恐有違反刑法「謙抑原則」之虞。 本文以政府採購法第八十七條為中心研究圍標之犯罪行為，並將其處罰規定與鄰近各國比較分析，希望能從中尋找出降低圍標犯罪之方法，至少能使對社會敵對性較強之暴力圍標行為減少，倘能以行政管制措施即能防止圍標犯罪行為，焉能有不用之理，只有在用盡一切手段及方法後別無他法時，方得動用刑罰規範，這不正是刑法的最高指導原則？因之，本文認為政府採購法之「罰則」並非所謂的「行政刑法」，凡是使用刑事制裁之行為，均屬刑事不法之刑事犯，而非行政犯；為了避免「附屬刑法肥大症」之問題，有關圍標犯罪之行為應回歸刑法規範。希望藉本文之研究能對政府採購法的發展有一點貢獻。故本文針對政府採購法第八十七條第五項之借牌陪標罪，建議修正條文如下，提供參考： 第87條第5項（借牌參標罪） 意圖影響採購結果或獲取不正利益，而借用他人名義或證件投標者，處三年以下有期徒刑，得併科新臺幣一百萬元以下罰金。容許他人借用本人名義或證件參加投標者，亦同。但能證明其屬善意或已盡告知義務者，不在此限。 關鍵詞：政府採購法、圍標、借牌圍標、暴力圍標、詐術圍標
並列摘要
Abstract Government procurement involves the huge business opportunity, its profit is often coveted by unworthy manufacturer, and in the drawback that government procurement produces, most by enclosing and marking crimes emerging in behavior. Because of it, our country while making the law of purchase of the government, belong to fair play originally especially law the norm will be enclosed and marking the behavior, bring into penalty clause chapter of this law, and the 87th norm of Israel, this France, encloses and marks the behavioral punishment important document. But the norm that can accord with the law of purchase of the government when the manufacturer is in order to join and marks, often join and mark to others ' borrow the card ', use to accord with the requirement which has reached three manufacturers of calling for bid for the first time, also increase the chance to have one's tender accepted at the same time, it thinks this measure just wants to obtain the marking case and have no intention of the crime simply, examine, investigate, obtain but cheat the skill to enclose with the intersection of law and 87th item 3 this and mark the crime to prosecute often, wait till, accord with, declare to court innocent with often try, cause Yu MinGuo to increase the regulation definitely ' borrow the card and enclose and mark the crime ' in item 5 of this string while repairing the law in 91 years. This text it thinks to be if simple to borrow card, join, mark, namely construct with punish, have, violate the intersection of criminal law and ' modest to restrain the principle ' supposition probably while being criminal. This text studies and encloses the criminal offence that is marked as the centre with article 87 of the law of purchase of the government, and punish it to stipulates and is near the comparative analysis of various countries, hope to look for out and reduce and enclose the method to mark crime from it, at least can make, enclose, mark behavior, reduce to social hostile than strong violence, if can prevent enclosing and marking the criminal offence to control the measure with the administration, how could have reason not used, only utilize the penalty norm while having no other way out after using up all means and methods, is not this exactly a supreme guideline of criminal law? Because of it, this text thinks the so-called ' administrative criminal law ' of ' penalty clause ' of the law of purchase of the government, every behavior used and is punished criminally, belong to the criminal and illegal criminal, but not the administration makes; In order to avoid the question of ' the loose disease of subsidiary criminal law ', enclosing the behavior of marking the crime relevantly should return to the norm of criminal law. Hope the research of making use of this text develops a little contribution to law of purchase of the government. So this text, to borrowing the card and accompanying and marking the crime of the 87th item 5 of law of purchase of the government, propose revising clauses as follows, offer reference: 87 piece item 5 ( Borrow the card and join and mark the crime) The intention influences purchasing the result or can not obtain strought the interests, but use others' name or certificate bidder, sentence to the fixed-term imprisonment under three years, must combine fine of under department's new Taiwan dollar of 1 million yuan. It permit use others one's own name or certificate last bidder,also and. But can prove it has belonged to good will or already done to the person who tells obligation, is not subject to the limits. Keyword: The intersection of government and law of purchase, enclose, mark, borrow card enclose, mark and violence enclose mark, cheat skill enclose and mark